When the Ombudsman orders the NHS to apologise what does it mean for clinical negligence claims?

A recent case involving NHS Lothian highlights an important question for patients and families who believe something went wrong with NHS treatment: if the Ombudsman finds failings and orders an apology, does that mean there is a legal claim for clinical negligence compensation?

This week the Scottish Public Services Ombudsman (SPSO) ordered NHS Lothian to apologise to the next of kin of a patient who died from a blood infection.

The SPSO investigated the death after Patient A developed a serious Staphylococcus aureus bloodstream infection after the infection was believed to come from an infected cannula. 

The family made three complaints – one about medical care, one about nursing care and one about how the health board handled their original complaint. 

The Ombudsman found NHS Lothian medical care was reasonable but did identify failings in nursing care around cannula care, incomplete paperwork and skin/wound care. 

It also found the health board failed in the handling of the complaint because it failed to include the family, failed to review “pertinent facts” and there were even concerns the person who did the review was not independent and may not even have been qualified to do it. 

NHS Lothian was therefore ordered to apologise and make improvements. 

The findings and NHS Lothian’s response were also reported by STV News. 

What does this kind of outcome mean for a family considering a fatal NHS claim?

It is important to note that an apology is not an admission of negligence.

Under the Apologies (Scotland) Act 2016, an apology made outside legal proceedings is not admissible as evidence of liability in civil proceedings. In other words, an apology from a health board should not, by itself, be treated as an admission that the board was legally negligent.

This reflects the wider Scottish approach to openness when healthcare has gone wrong. The statutory organisational duty of candour requires relevant healthcare organisations to be open with patients and families about certain unintended or unexpected incidents, including providing an apology. The Scottish Government makes clear that an apology under the duty of candour procedure does not, of itself, amount to an admission of negligence.

An Ombudsman-ordered apology should therefore not be viewed as a substitute for proving a clinical negligence case.

Does an SPSO finding have value in a medical negligence claim?

Potentially, yes – but it is important to distinguish an apology from the findings that led to it.

An SPSO report may provide useful information about what happened, what records exist and what failings an independent investigation identified but it does not automatically establish negligence, causation or entitlement to damages.

Its role is to investigate complaints about public services – in those matters involving the NHS it can examine clinical judgement in NHS cases.

However a clinical negligence claim involves different questions and will look at a more holistic and detailed picture of the wider reaching effects of the incident. 

For an NHS claim to be worthy of compensation a good clinical negligence solicitor in Scotland must consider three key things:

1. What is normal practice?
2. Has normal practice been followed in this case?
3. Crucially has the practice which has been adopted in this case been one which no ordinarily competent practitioner, acting with ordinary care, would have followed

In the recent NHS Lothian case, the Ombudsman also noted Patient A was already seriously unwell and may not have survived their existing conditions – these kinds of things impact compensation claims (whether it’s liability, causation or value). 

For any legal claim, questions of causation and loss would still require careful investigation and independent medical evidence and/or evaluation. 

Ombudsman complaints help – but they don’t stop the clock

In Scotland people have three years to make a claim from the time of the injury but SAERs and SPSO proceedings can eat into this timeline. They are often long processes and any resultant delays can negatively impact a future legal claim. 

This is why it is always useful to contact a solicitor as quickly as possible (usually after the SAER findings are provided but before any complaint to the SPSO) – that way you can at least get reliable guidance on any next steps.

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Trish McFadden, Partner